Chapter 3 – Giving effect to international obligations
Q1 How can we achieve making the new Act the primary source of New Zealand’s extradition law but also, where necessary, give effect to New Zealand’s international obligations?
Q2 How should extradition treaties be able to alter the statutory regime?
Chapter 4 – Roles and responsibilities
Q3 Do we need a central authority for extradition?
Q4 Who should be appointed as the central authority for extradition?
Q5 What should be the relationship between the role of the New Zealand Police in backed-warrant extraditions and the role of a central authority?
Q6 How should privilege work in extradition?
Q7 What is the correct relationship between the administrative decisions and political oversight of extradition?
Q8 Should the District Court continue to have original jurisdiction for extradition proceedings?
Chapter 5 – Extradition offences
Q9 How do we best give certainty to the definition of “extradition offence” in the new Extradition Act as well as flexibility to best take into account the need to adjust the definition according to an extradition treaty?
Q10 Is there a need for more expansive wording on dual criminality in the new Extradition Act? How could this be achieved?
Q11 What is the correct extradition threshold when someone is accused? What is the correct threshold when someone is convicted?
Q12 Should the “extradition offence” requirements (or the maximum penalty threshold or dual criminality requirements) differ for some countries?
Chapter 6 – Categorisation of countries
Q13 How should the new Extradition Act distinguish between different countries, and for what purposes and why? Is there a special case for any country, for example, Australia?
Chapter 7 – Inquiry into the case against the person sought
Q14 Should the new Extradition Act retain an inquiry by the New Zealand courts into the evidence against the person sought for extradition for most countries?
Q15 Should the correct judicial inquiry be whether a judge is reasonably satisfied that there is sufficient evidence in relation to the offence to justify extradition?
Q16 To what extent should requesting countries be able to provide a summary of evidence to satisfy the court regarding the case against the person sought for extradition?
Chapter 8 – Grounds for refusing surrender
Q17 What grounds for surrender ought the courts be considering, and what grounds for surrender ought to be considered by the Minister?
Q18 Should “political offence” be retained as a ground for refusal, and should a definition of “political offence” be added in the new Extradition Act?
Q19 Should the current list of discriminatory factors for refusing surrender be extended in the new Extradition Act?
Q20 How should the exclusion of military-only offences be dealt with in the new Extradition Act?
Q21 How should the new Extradition Act deal with the double jeopardy ground for refusal?
Q22 Should the basis for the application of the mental health or intellectual disability ground for refusal be expanded in the new Extradition Act? If so, what is the best way of doing this?
Q23 Should the injustice or oppression ground for refusal be expanded in the new Extradition Act?
Q24 How should the new Extradition Act deal with the situation whereby a prosecution for a New Zealand offence is pending against the individual sought for extradition?
Q25 How should the torture ground for refusal be addressed in the new Extradition Act?
Q26 How should the restriction on extraditing New Zealand citizens be addressed in the new Extradition Act?
Q27 How should the death penalty ground for refusal be addressed in the new Extradition Act?
Q28 How should the compelling or extraordinary circumstances ground for refusal be dealt with in the extradition process?
Q29 How should the principle of speciality be dealt with in the extradition process?
Q30 Should the Minister retain a broad discretionary basis to refuse extradition in the new Extradition Act?
Q31 Should the new Extradition Act include a ground for refusing surrender on the basis that the offence would be more appropriately prosecuted in New Zealand?
Q32 Should the new Extradition Act have extra protections in relation to fair trial rights in the requested country? If so, what protections are necessary?
Q33 Should there be any exceptions to the applicable grounds for refusal for extradition requests from Australia or from Category 1 countries?
Chapter 9 – Procedure
Q34 What role should the new central authority have in processing an extradition request before it gets to the courts?
Q35 In the context of extradition, what should a judge be assessing in an arrest warrant application?
Q36 Do the current bail procedures operate adequately in the context of extradition?
Q37 Should the new Extradition Act contain a disclosure regime, and if so, what should be its scope and what should it look like?
Q38 Should the substantive extradition hearing process have its own rules for evidence and procedure?
Q39 Should the new Extradition Act provide that any issue sought to be challenged should be done by means of one general right of appeal against the District Court’s substantive decision to the High Court?
Q40 Does the new Extradition Act need to provide for procedural rules governing the Minister’s final decision on surrender?
Chapter 10 – Refugee proceedings and extradition
Q41 How should the relationship between extradition proceedings and refugee proceedings be clarified?
Q42 Is further statutory reform needed to address any disclosure concerns regarding refugee proceedings and extradition proceedings?
Chapter 11 – Extradition to New Zealand
Q43 How do we need to adjust the law to deal with outgoing extradition requests from New Zealand?
Chapter 12 – Introduction
Q44 Does this issues paper set the right balance between the gateway and gatekeeper mechanisms necessary in MACMA?
Chapter 13 – Giving effect to international commitments
Q45 What do you think about our proposed approach of having a basic procedure set out in MACMA for all countries, which could be supplemented through international agreements?
Q46 In thinking about a potential redrafting of MACMA, how closely do you think the Act needs to align with the Harare Scheme and its supplementary Model Legislation? Is consistency with the Commonwealth significant?
Chapter 14 – The Central Authority
Q47 Who is the appropriate person to be designated as the Central Authority under MACMA?
Q48 Should MACMA expressly provide that communications between the Central Authority and the requesting country ought not to be disclosed unless in the interests of justice?
Chapter 15 – Grounds for refusing assistance
Q49 Should a definition of “political offence” be added in MACMA to ensure that this ground for refusal is not interpreted too broadly?
Q50 Should the bases for refusing assistance due to discrimination be explicitly extended in MACMA to include sexual orientation, age, and disability?
Q51 Should the double jeopardy ground for refusal in MACMA become a ground that may be refused rather that a ground that must be refused?
Q52 Should the refusal to give evidence be a ground under which the request must be refused in MACMA?
Q53 Should the extraterritoriality ground for refusing a request be retained in MACMA?
Q54 Should the ground for refusing a request based on triviality be rephrased in MACMA to contain some additional detail on what might constitute triviality?
Q55 Should a request in the incorrect form be a ground for refusal in MACMA?
Q56 Should MACMA include a mandatory ground for refusing a mutual assistance request where there are substantial grounds for believing that a person would be in danger of being subjected to torture if the assistance was given?
Q57 Should MACMA include a ground that assistance may be refused if, in the opinion of the Attorney-General, there is no assurance that the material to be provided to the requesting country will be solely used for the requested purpose?
Q58 Should MACMA include a general discretion to refuse to provide assistance if it is appropriate in all the circumstances that the assistance should not be granted?
Q59 Should all grounds for refusal in MACMA relate to the investigation stage of a criminal matter in addition to the prosecution and punishment stages?
Q60 Should New Zealand have a statutory obligation in MACMA to consult with a requesting country to consider whether a request may be granted subject to terms and conditions before deciding to refuse a request?
Chapter 16 – Proceeds of crime requests
Q61 Should the current interim foreign restraining order regime in MACMA be reformed?
Q62 Should the High Court be able to release funds restrained under a registered foreign restraining order to allow a respondent to pay legal expenses?
Q63 Do you think MACMA should acknowledge the ability of the Central Authority to enter into case-by-case asset-sharing agreements with foreign countries?
Chapter 17 – Search and surveillance requests
Q64 Do you think New Zealand should be able to obtain and execute a general examination order on behalf of a foreign country for criminal investigations and prosecutions?
Q65 Under what conditions should New Zealand be able to obtain and execute a surveillance device warrant on behalf of a foreign country for criminal investigations and prosecutions?
Q66 Should New Zealand be able to obtain and execute a production order on behalf of a foreign country for criminal investigations and prosecutions?
Q67 How should powers to intercept data in New Zealand be used in respect of criminal investigations and prosecutions in a foreign country?
Q68 How should covert electronic surveillance powers in New Zealand be used in respect of criminal investigations and prosecutions in a foreign country?
Q69 How should the issue of the involvement of foreign law enforcement officers in executing search warrants (and potentially examination orders and surveillance device warrants) be dealt with under MACMA?
Q70 How should MACMA deal with the issue of sending seized (or created) material overseas in response to a request that contains both relevant and irrelevant information?
Q71 How should MACMA deal with the issue of sending potentially privileged or confidential seized (produced or created) material overseas in response to a request?
Q72 How should MACMA deal with a New Zealand Bill of Rights Act challenge to an investigative action taken under the Search and Surveillance Act in response to a request?
Q73 How should MACMA protect against the collateral use of any seized (produced or created) material that is sent overseas in response to a request?
Q74 How should MACMA deal with issues of access, retention, and disposal of seized (produced or created) material that is sent overseas in response to a request?
Q75 Should MACMA be amended to make the provision of search and surveillance assistance conditional on New Zealand and the foreign country reaching prior agreement on a list of specified matters?
Chapter 18 – Requests for information
Q76 Do you think MACMA needs a specific provision that gives the Central Authority a statutory mechanism for requesting information from domestic agencies?
Q77 How can the relationship between the Privacy Act and MACMA be clarified in the law?
Q78 Do you think MACMA needs a statutory framework for collecting voluntary evidence?
Q79 Are there any other forms of assistance that MACMA ought to specifically to provide for?
Q80 How should MACMA deal with a request received by a foreign country for material that has already been lawfully obtained under a warrant or order? Should any involvement from the court be required?
Chapter 19 – Managing the overlap with inter-agency mutual assistance regimes
Q81 What fundamental safeguards do you think should be included in all inter-agency mutual-assistance regimes?
Q82 What is the correct relationship between inter-agency mutual assistance regimes and MACMA?
Q83 Given the types of assistance that can be undertaken under inter-agency mutual assistance agreements, how do we best ensure that there is sufficient oversight when foreign countries request material that has been obtained via coercive means?
Chapter 20 – The ability of defendants to use MACMA
Q84 Do you think MACMA should be clarified to expressly allow it to be used to obtain evidence on a defendant’s behalf?
Q85 If yes, do you think the defendant should be required to apply to the trial court to obtain approval to use the MACMA process?
Q86 Should New Zealand be unconcerned as to who the ultimate recipient of the MACMA request might be, provided the request has been made by the foreign central authority?
Chapter 21 – Procedural concerns
Q87 Can you foresee any problems with updating MACMA to account for modern technology where that technology can be used domestically?
Q88 Do you think MACMA should contain an urgent request procedure?
Q89 How should MACMA deal with the costs associated with undertaking requests on behalf of a foreign country?
Q90 Are there any other areas that are problematic or deficient in MACMA?
Chapter 22 – Outgoing requests
Q91 What mechanism is required to enable New Zealand to make mutual legal assistance requests to foreign countries?
Q92 How ought evidence obtained by New Zealand under a mutual legal assistance request be authenticated?
Q93 What domestic rules relating to the admissibility of evidence cause an issue for evidence obtained by New Zealand under a MACMA request?
